Free Order Denying IFP - District Court of Delaware - Delaware


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Date: June 20, 2007
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State: Delaware
Category: District Court of Delaware
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Case 1:07-cv-00340-JJF Document 4 Filed 06/18/2007 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IVAN L. MENDEZ, :
Plaintiff, ;
v. Z Civ. No. 07-340-JJF
THIS CRIMINAL ORGANIZATION, ;
Defendant. E
O R D E R
Plaintiff Ivan L. Mendez, an inmate at the Delaware
Correctional Center, filed this action pursuant to 42 U.S.C. §
1983. He proceeds pgp ge and has requested leave to proceed ip
fgrma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 2.)
The Prison Litigation Reform Act (“PLRA”) provides that a
prisoner cannot bring a new civil action or appeal a judgment in
a civil action in forma pauperis if he has three or more times in
the past, while incarcerated, brought a civil action or appeal in
federal court that was dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. 28
U.S.C. § 1915(g). A case dismissed as frivolous prior to the
enactment of the PLRA (i.e., April 26, 1996) is counted when
applying the "three strikes rule". Keener v. Pennsylvania Bd. of
Probation & Parole, 128 F.3d 143 (3d Cir. 1997). An exception is
made to the “three strikes rule", when the prisoner is in
imminent danger of serious physical injury. A prisoner who is
not proceeding in fggma pauperis may file a new civil action or

Case 1:07-cv-00340-JJF Document 4 Filed 06/18/2007 Page 2 of 3
appeal even if that prisoner has three or more dismissals
described in 28 U.S.C. 1915(g).
Plaintiff, while incarcerated, has filed more than three
civil actions that have been dismissed as frivolous or for
failure to state a claim upon which relief may be granted. See
Mendez v. Delaware Correctional Center, Civ. No. 05-303-JJF (Dec.
1, 2005); Mendez v. Delaware Legal System, Civ. No. 05-304-JJF
(Dec. 1, 2005); Mendez v. Delaware State, Civ. No. 05-305-JJF
(Dec. 1, 2005); Mendez v. Delaware Psychiatric Center, Civ. No.
05-306-JJF (Dec. 1, 2005). Therefore, Plaintiff may not file
another civil action in forma pauperis while incarcerated unless
he is in "imminent danger of serious physical injury" at the time
of the filing of his complaint. 28 U.S.C. § 19l5(g); Abdul-Akbar
v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). His Complaint
does not meet that standard. He is not excused from the
restrictions under § 19l5(g), and he may not proceed in fggma
pauperis.
The Court also notes that Plaintiff filed similar Complaint
against the same Defendant in Civ. Action Nos. 06—780—JJF, 07-
162—JJF, 07—236—JJF, and 07-339—JJF. The Court considers the
filing of the present Complaint malicious. A complaint is
malicious when it “duplicates allegations of another [ ] federal
lawsuit by the same plaintiff.” Pittman v. Moore, 980 F.2d 994,
995 (5th Cir.1993); EQQ QLSQ Banks v. Gillie, Civ. Act. No. 03-
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Case 1:07-cv-00340-JJF Document 4 Filed 06/18/2007 Page 3 of 3
3098, 2004 U.S. Dist. LEXIS 5413, at *9 (E.D. La. Feb. 25, 2004)
(duplicative and repetitive complaints are considered malicious
for purposes of § 1915); McGill v. Juanita Kraft Postal Service,
No. 3:03—CV—1113-K, 2003 WL 21355439, at *2 (N.D. Tx. June 6,
2003) (complaint is malicious when it “‘duplicates allegations of
another pending federal lawsuit by the same plaintiff' or when it
raises claims arising out of a common nucleus of operative facts
that could have been brought in the prior litigation”)
(quotations omitted).
THEREFORE, at Wilmington this i§;_ day of June, 2007, IT IS
HEREBY ORDERED that:
1. Plaintiff's Motion for Leave to Proceed In Egrma
Pauperis (D.I. 1) is DENIED.
2. Plaintiff is given thirty (30) days from the date of
this order to pay the $350.00 filing fee. If Plaintiff does not
pay the filing fee within that time, the Complaint shall be
dismissed pursuant to 28 U.S.C. § 1915(g).
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